The Illinois Supreme Court recently held that a pattern jury instruction in medical malpractice cases did not correctly state the law of Illinois. The court held the phrase "reasonably careful" allowed the jury to consider things other than expert testimony and evidence of professional standards and conduct in determining whether a physician has complied with the standard of care. The phrase also lacks any reference to a professional's knowledge, skill, and care or ability. The case is Studt v. Sherman Health Systems, and is available here.

Dan Filler at Faculty Lounge reports that Duquesne Law School in Pittsburgh is seeking a Torts Visitor for the 2011-2012 academic year.

Separately, Brian Leiter's annual report on professors visiting at the top six law schools includes several notable torts profs. Martha Chamallas (Ohio State), Keith Hylton (Boston University), Charles Silver (Texas), and Michael Trebilcock (Toronto) will be visiting at Harvard. Alexandra Lahav (Connecticut) and Tony Sebok (Cardozo) will be visiting at Columbia. Robert Rabin (Stanford) will be visiting at NYU. Albert Yoon (Toronto) and Ariel Porat (Tel Aviv) will be visiting at Chicago.

That's right. Torts - tonight on HBO. From Meredith Miller at Contracts Prof Blog comes word of a new documentary premiering tonight on HBO: "Hot Coffee." As you can guess from the title, the show uses the ubiquitous "hot coffee" case of Stella Liebeck (previously discussed here and here by Mike Rustad) as a lens to view topics of tort reform, judicial elections, and mandatory arbitration. Unlike the typical use of the Liebeck case, however, the film makers uses it to emphasize the plaintiffs' point of view.

Bloomberg Business Week (AP) reports that New York City paid about $521 million in 2010 to settle personal injury and property damages suits. The Police Department, Department of Transportation and Health & Hospital Corp. had the most settlements in 2010.

Nashville Public Radio reports that Tennessee Governor Bill Haslan signed a tort reform bill last week that will cap non-economic damages. The details in the story are few, but it provides a link to the underlying bill.

I've been posting a bit more on my amusement park safety blog, MassTort.org, in the last few months, and this week a California intermediate appellate court decision caught my attention. In it, the court concluded that assumption of risk didn't apply to at least some injuries in the amusement ride context, and that there were factual issues precluding summary judgment.

Both the majority and dissenting decisions are well worth a read, exploring as they do the expansion and contraction of no-duty rules, the concept of perceived risk in the amusement ride context, and Batman. (Really.)

While few who have urged tort reform have recognized racism as one of the principal barriers to social justice, this article claims it is essential to discuss race discrimination in order to have true tort reform and to address the problems inherent in the tort doctrine. The article emphasizes the race issue impacts every aspect of a tort claim and adversely affects lawyers, clients, and the public view on justice. Pretending race has nothing to do with tort law or utilizing a colorblind approach only reinforces inequality within the system. Stories of people of color, in addition to what empirical studies of judgments and verdicts are available, shed some light on the serious problems within the tort system with regards to racial justice albeit only scratching the surface. The article concludes by suggesting some tort reform measures that could ease the pain of participants in the tort system.

Tort reform emerged as a major issue in the culture wars during the 2004 presidential election and continues to be a heavily debated issue today. While a community’s sense of social justice should dictate the values used to assess and shape tort law, different communities have widely varying perspectives of social justice. This article reflects on the potential impact of the culture wars on medical malpractice law and litigation and emphasizes the most critical criteria for assessing medical malpractice reform is how well the legal system protects, affirms, and restores the human dignity of both patients and health care providers. The article reasons there is not a one-size fits all medical malpractice tort system, and in order to prioritize human dignity, it is essential to take into account the cultural, social, and religious diversity within America and shift the focus from economic to dignitary priorities. Finally, the article discusses the profound health care consequences of illiteracy and low health literacy.

According to the Sand Mountain Reporter, Alabama enacted several tort reform measures last week, though the substance of these reforms is very unclear from the article:

Gov. Robert Bentley signed a package on Thursday that included four bills on tort reform. The legislation is the first of its kind in 14 years. Republican Rep. Wes Long of Guntersville sponsored one of the four bills in the package. Labeled the Alabama Small business Protection Act, Long’s bill will allow retailers and distributors of products to be dismissed from lawsuits dealing with design and manufacturing of the products.

For example, Long said a pharmacy selling a medication that comes under litigation could be excused from the case “if they prove they didn’t touch it.” Under the former law, the pharmacy would be required to stay in the case until it is resolved, he said.

The other reform bills in the package work to make sure lawsuits stay in the correct venue and keep frivolous lawsuits at bay.

The New York Times today has a story that could be from a law school exam, having as it does a new (flammable) product, a label susceptible of multiple interpretations, allegedly lacking warnings, and a withdrawal of the product pending revisions of the label. It describes two serious burn accidents resulting from using Napa Home and Garden's "Firelite...Safe Pourable Gel." Worth a read to get a real-world product warning example.

In Holding Bishops Accountable, Professor Timothy Lytton presents the Catholic Church child molestation lawsuits as an example to encourage a more careful look at torts litigation’s potential policymaking benefits. In this forthcoming book review (draft available for download), Professor Cupp praises Professor Lytton’s thesis and his impressive scholarship. However, the review raises as an open question whether the clergy abuse cases provide an illustration that is too exceptional to substantially enhance openness to the idea of torts litigation as a policy tool.

Church leaders abusing vulnerable children creates a deeply compelling “morality play,” and a plaintiff’s attorney’s perfect plotline. Finding a more sympathetic plaintiff than a defenseless child or a more deplorable defendant than a corrupt clergyman abusing innocents is not easy. The review acknowledges that in the information age a strong symbiotic relationship exists between news and torts lawsuits that should not be underestimated in assessing torts law’s impact on policymaking. With a scenario as shocking as priests molesting children, the media justifiably flock to cover the scandalous story, the extensive coverage shapes public perceptions, and significant policy change predictably follows.

The review recognizes that under the right circumstances, torts law might play a role as a policymaking tool, but it cautions that the particularly powerful illustration of clergy abuse litigation is just that – particularly powerful – and that torts law’s potential for influencing policy is more limited in most litigation scenarios.

The article deals with five broad themes. First, the idea of rescue is embodied in the duty to act reasonably in tort law. Second, the article explains the judicial array of balances in rescue situations, involving the victim, rescuer, and defendant. Third, the article argues that both extremes of the rescue obligation are somewhat reproduced in the prevailing law. Fourth, the article constructs a response to the second thesis, arguing that reasonableness must go beyond the plain judicial balancing approach and derive outcomes and meaning from normative principles. Fifth, rescues represent the junction of the public law and private law distinction because it is based on the conception of the State and the relation with its people. The article concludes that principles of rescue must be derived from a common order of values that transcend public and private law reasoning.

In a globalized world the activities of multinational and transnational corporations have a profound impact on the human rights of individuals and communities, especially in developing countries. The human rights violations committed by these agents have to be dealt with. Today is commonly accepted that the optimal approach from a legal point of view should be one of international law; but so far international law has not provided satisfactory answers. Therefore, the accountability of multinational and transnational corporations requires the intervention of domestic systems, where various regulatory options seem possible: one is the use of private civil claims. Civil litigation for human rights often involves private international law problems. Traditional PIL solutions for civil liability do not suit the factual context of violations of human rights. That is why changes on issues such as the criteria of international jurisdiction are needed. In the EU the task could be addressed at this very moment, in the context of the process of review of Regulation Brussels I.

Volume 4, Issue 1 of the Journal of Tort Law is now available. Issue 1 is the first of three that will feature papers presented at a conference titled “Property, Tort and Private Law Theory.” It was held at the University of Southern California’s Gould School of Law in October, 2010, and was organized by Professors Gregory Keating of USC and Benjamin Zipursky of Fordham University School of Law.

It's been quite a week in western Massachusetts, between the tornadoes earlier in the week (which went across our campus but, thankfully, did relatively little damage to the college) and my daughter's completion of elementary school (she's pictured to the right in her graduation dress, which, yes, has historically-significant headlines). But the world of torts carries on!

New York's Court of Appeals will hear the negligence case brought against the owners of the World Trade Center arising out of the 1993 bombing. (NJ.com)

Reform, Legislation, Policy

South Carolina's Senate adopted caps on punitive damages, with various exceptions. (TheState.com)

LA Times editorializes against the deductibility of punitive damages as business expenses. (LAT)

Miscellaneous

Heck of a story, involving BigLaw, an effort to discredit the entire judicial system of Madison County, plus the former first lady of Illinois as the PR person suggesting that campaign. Yeah! (Chicago Tribune)

As mentioned above, a tornado went through the campus of Western New England. This video was shot about a block from the School of Law and shows that the tornado went right over it -- remarkably doing very little damage:

The elements of the debate between Judges Cardozo and Andrews in Palsgraf are canonical: (1) What is the nature of duty—is it relational or act-centered?; (2) Is plaintiff-foreseeability a duty inquiry or an aspect of proximate cause?; (3) Is court or jury the proper arbiter of foreseeability? An exhaustive examination of the case law on these questions reveals a deep disconnect between what most of us learned in law school and what is playing out in modern courts. Close scrutiny of Palsgraf’s present-day incarnations also lends an invaluable birds-eye view of duty law, an area so rife with inconsistency and contradiction that it often bears more resemblance to constitutional law than the quintessential common-law doctrine that we expect from tort cases. This article melds the doctrinal with the theoretical. It is the first comprehensive survey of Palsgraf since Prosser’s Palsgraf Revisited, in 1953, and it is also a bottom-up inquiry into the “meaning” of duty in today’s courts. The most significant findings of the article are as follows: (1) Most courts have not bought into Cardozo’s relational view of duty—instead, courts are nearly unified in the view that duty is, at its core, a multi-factor policy analysis, although courts do not agree on the relevant factors; (2) Cardozo has overwhelmingly won the day on plaintiff-foreseeability’s place in duty versus proximate cause—a fact which contradicts Palsgraf’s common treatment in law school classrooms as well as the Restatement (Third) of Torts—although Cardozo’s directive that foreseeability is to be decided categorically has not been broadly adopted; and (3) In a bizarre twist, a majority of courts leave duty-foreseeability’s determination to the jury. This final discovery provides important insight into a hidden tension that has smoldered in courts’ negligence jurisprudence at least since Palsgraf was decided eighty-three years ago.

For nearly four decades, economic analysis has dominated academic discussion of tort law. Courts also have paid increasing attention to the potential deterrent effects of their tort decisions. But at the center of each economic model and projection of cost and benefit lies a widely-accepted but grossly under-tested assumption that tort liability, in fact, deters tortious conduct. This article reports the results of a behavioral science study that tests this assumption as it applies to individual conduct.

Surveying over 700 first-year law students, the study presented a series of vignettes, asking subjects to rate the likelihood that they would engage in a variety of potentially tortious behaviors under different legal conditions. Students were randomly assigned one of four surveys, which differed only in the legal rules applicable to the vignettes. In summary, the study found that although the threat of potential criminal sanctions had a large and statistically significant effect on subjects’ stated willingness to engage in risky behavior, the threat of potential tort liability did not. These findings call into question widely-accepted notions about the very foundations of tort law.

Hundreds of billions of dollars are spent every year in the public sector as a result of death, injury, and illness associated with products. The taxpayer takes on this burden, a reality that ought to be considered by courts and policy makers when setting the standards for liability and levels of regulation governing products. Yet, to date, the government has made no attempt to trace specific government expenditures to product-related injuries. Indeed, due to the dearth of government data on the subject, no one to the authors’ knowledge has even constructed an estimate of product-related public expenditures. This article attempts to bridge this gap by gauging the taxpayer’s burden from two vantage points. First, the article collects data with regard to government spending potentially related to product harm and then approximates the percentage of expenditures traceable to such harm. The result of this methodology is an estimated $327.8 billion annual burden on the taxpayer. As a check on this figure, the article approaches the question from the opposite direction. Marshaling existing data on the annual number of product-related injuries, the article assigns an average per-injury cost and then assesses the percentage of the total cost borne by the government. According to this second methodology, the annual taxpayer burden associated with products is $1.089 trillion. Despite consistent attempts by the authors to adopt conservative measures in conducting this study, the resulting numbers are astounding and must not be ignored in the policy debates ongoing in courts, legislatures, and media centers across the country.